Updated: 11/24/2009 7:31:29 PM
The attorney for a Knoxville man, convicted of reckless homicide in the death of a teen he said his wife was having an affair with, is arguing against the 12 years of probation in his sentence.
Eric McLean served just under a month behind bars after being convicted in the shooting death of 18-year-old Sean Powell.
But he was also sentenced to 12 years of probation.
Defense attorney Bruce Poston is arguing before the Court of Criminal Appeals that the probation is too much.
Poston said the reckless homicide conviction was "the right verdict from a jury sequestered for nine days." The jury had options from first degree murder down to consider.
But Poston said the 12-year sentence of probation was within the range of the law but an abuse of discretion.
Assistant Attorney General Leslie Price argues the sentence is proper because the court has discretion up to the maximum sentence prescribed by law.
"Whether the sentence is justly deserved in relation to the seriousness of the offense and several times in the statute it refers to the seriousness of the offense and here the trial court looked at the fact that the victim was unarmed," she said.
Price said the trial court had considered all the factors in deciding McLean's sentence.
"He used a weapon on an unarmed victim," she said.
The court has no deadline for ruling on the appeal
After the shooting, Eric McLean's then-wife Erin Myers McLean (now Myers) left Knoxville with the couple's two children. Eric McLean divorced her in absentia. She could not be located to testify in his trial.
After Eric McLean's conviction, their custody dispute involved allegations of misconduct in both directions, with Erin Myers spending some time behind bars for contempt.
In February, Eric McLean received primary residential custody of the children. Both parents were ordered to behave in a civil manner, to encourage the children to keep loving the other parent, and to keep their children out of the news.
